How to Protect Against a Wrongful Termination

Although most employees are hired on an “at will” basis, Federal employment laws prohibit employers from terminating employees on the basis of certain protected classifications and activities. In general, an employer is prohibited from terminating an employee due to race, gender, age (over 40), disability, pregnancy, national origin and religion. It is also unlawful for an employer to fire an employee in retaliation for the employee’s exercise of federally protected rights. An employer cannot, for example, discharge an employee because of his complaining of perceived discrimination or harassment. Most states impose similar, and in many cases, more expansive restrictions upon an employer’s right to discharge employees. Employees can protect themselves from unlawful termination, and increase the chances of prevailing in a wrongful termination suit in the event of such a discharge, by maintaining relevant documents and information.

Difficulty: Moderate

Instructions

Things You'll Need:

• Excellent record keeping skills
• Confident and professional attitude
• Positive work performance

1. Retain any written contract of employment. Also retain any offer letter outlining the terms of your offer of employment.

2. Retain employee handbook, which may provide legally enforceable rights to the employee.

3. Retain all written performance evaluations/assessments. Ensure that such documents are signed by the evaluating supervisor.

4. Retain all commendations, such as employee of the month or year awards and recognitions. Include informal awards or recognitions, such as thank-you notes or emails.

5. Keep notes of any discriminatory remarks or comments that may suggest that unlawful considerations are causing adverse employment action.

6. Report any perceived discriminatory or unawful treatment to the appropriate management level supervisor identified in the employee handbook or to your personal supervisor.

7. Note any changes in treatment after legal challenges.

Tips & Warnings

• In order to defend a wrongful discharge action, employers must demonstrate a legitimate, nondiscriminatory reason for the decision. Poor work performance is usually the reason given. Written performance evaluations frequently provide commendations and ratings data that can be useful in disproving the employer’s later offered reason for termination.
• Few employees have actual written contracts of employment. Offer letters, however, may provide the employee with certain enforceable rights or with evidence useful in rebutting an employer’s later asserted reason for termination.
• Keep any documentation from the employer that demonstrates satisfaction with work performance. Maintain hard copies of complimentary emails as well.
• Employers can discipline and terminate employees despite membership in protected classifications. It is therefore essential to provide good work performance, including punctual attendance with minimal absences.